Alien’s Law

By

November 29, 2001

"The government destroyed my life," Mazen Al-Najjar said with both anger and wonder. "Slandered me with secret evidence. And all that time, they were after the wrong man. While I was in jail, the terrorists were loose."

A few days before Thanksgiving Al-Najjar sat across a coffee table from me, explicating the relationship between T.S. Eliot and contemporary Palestinian poetry, repeating a Ramadan joke he'd heard at his mosque the night before, pensively analyzing what he called the "terrible crime" of September 11 and how its perpetrators could best be fought. But mostly Al-Najjar talked about the three and a half years he spent in jail, based on still-secret evidence alleging terrorist associations. He stayed locked up until a no-nonsense federal judge declared his detention unconstitutional in May 2000, and an immigration judge, in a new and more fair proceeding, declared the charge unfounded and last December ordered his release. Neither of us had an inkling that just a few days later, Mazen Al-Najjar would end up as one of the post-September 11 "disappeared."

On the morning of November 24, Al-Najjar left his apartment near the University of South Florida, where he used to teach, to get quarters for the laundromat. His wife was at work, his three daughters still in bed. Federal agents arrested him. A Justice Department press release, repeating the same allegations that had been thrown out of court last year, described his arrest as an effort to "address terrorism by using all legal authorities available."

I sought out Al-Najjar before his unexpected second incarceration because the case of this Gaza-born, US-educated PhD is a bellwether challenge to the constitutionality of secret-evidence antiterrorism trials. He had attracted supporters ranging from Republican Congressman Bob Barr to Democrat David Bonior. Yet here was Al-Najjar arrested again, once more labeled a terrorist, locked up for yet another Ramadan. Has the Justice Department uncovered new evidence linking him to Palestinian Islamic Jihad, the group he was once accused of aiding? Or to the September 11 plot?

According to the Justice Department, there is no new evidence. Al-Najjar's latest arrest is ostensibly on technical grounds. Although freed by court order of terrorism charges, he still is under a deportation order for overstaying his student visa. Although he is contesting that deportation (in mid-November he lost a case before the US Court of Appeals for the Eleventh Circuit, which he plans to take to the Supreme Court), the INS may hold someone under a final deportation order for up to six months while it seeks to deport him–but only if he poses a danger to the community or a risk of flight, neither of which the INS has been able to establish.

But the visa issue is just a smokescreen. In fact, Al-Najjar's latest detention appears to be the leading edge of an alarming strategy by John Ashcroft's Justice Department to resuscitate and expand secret-evidence trials and to prepare the way for the imprisonment of noncitizens for virtually unlimited terms.

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Until September 11 the use of secret evidence in immigration cases appeared to be finished: All but one of the noncitizens held on the basis of secret evidence had been freed, a Congressional bill restricting the practice had passed the House Judiciary Committee and last year candidate George W. Bush himself denounced secret-evidence trials, after hearing complaints from Arab-Americans in Michigan. But now his Justice Department is seeking broader secret-trial powers than ever–with Mazen Al-Najjar a convenient guinea pig.

Al-Najjar's case aroused strong emotion in Florida even before he became a civil liberties cause célèbre. He arrived in the United States in 1981 after living in the United Arab Emirates. While earning a PhD from University of South Florida and teaching there, Al-Najjar helped establish an Islamic studies center that invited to its conferences a wide range of scholars and speakers from the Muslim world–some of whom espoused controversial views on Israel. In 1995, Al-Najjar's co-editor at the center's journal disappeared and later turned up in Syria as general secretary of Palestinian Islamic Jihad. As a result, the FBI–apparently convinced the center was a front– seized its computers, videotapes and files and froze its accounts; USF, under intense media scrutiny as "Jihad U," conducted its own independent investigation.

Both inquiries cleared the center of any connection to terrorism–it was, a federal judge would later declare, "a reputable and scholarly research center." But local FBI officials arrested Al-Najjar, its executive director, anyway and detained him on secret evidence. What lay behind the charge was never made public, but court papers hint that agents decided, on murky evidence, that he helped raise money for Palestinian Islamic Jihad and Hamas.

Al-Najjar now believes the FBI may have been hoping to make him an informant. "But I hadn't done anything," he insists. "I hate violence. I have never been a paramilitary. I have never raised money for killers." Finally, last fall, Immigration Judge R. Kevin McHugh heard two weeks of evidence allegedly supporting the government's claim–and promptly slammed the Justice Department for a case "devoid of any direct or indirect evidence" to support imprisonment of Al-Najjar. He refused to rely on secret evidence, because the government did not provide a summary that offered Al-Najjar a meaningful opportunity to respond. Janet Reno, after a personal review of the record, open as well as secret, declined to bar Al-Najjar's release.

Facing the collapse of its terrorism case, the only face-saving course for the INS was to deport Al-Najjar through conventional channels. He had indeed overstayed his student visa. But deportation is no simple matter: Many of the logical destinations for Al Najjar–Egypt, Saudi Arabia–have grown hostile to stateless Palestinians. The INS ostensibly plans to deport him to the Emirates, but his attorneys (including Nation legal affairs writer and Georgetown law professor David Cole) believe it unlikely that the Emirates would welcome him back. Even as the INS is seeking his deportation, Al-Najjar has applied for political asylum, claiming he would face persecution in any of his former homes.

All this still leaves the matter of Al-Najjar's arrest a mystery. Even if the government intends to deport him, why jail a man who repeatedly demonstrated that he is not a flight risk and whose name has been cleared by an Attorney General and a federal immigration judge? Why issue a press release that resurrects allegations already thrown out of court?

The answer may lie, in part, with an accident of geography. Al-Najjar may not be a terrorist, but he is guilty of living in the territory covered by the Eleventh Circuit, one of the most notoriously pro-prosecution, law-and-order appellate benches in the country. Arguments presented by Ashcroft aide Douglas Ginsburg at a November 8 circuit court hearing on Al-Najjar's case suggest a specific goal: establishing a blank-check policy for terrorism prosecutions. Ginsburg argued that even though Al-Najjar has no connection to the September 11 attacks, those attacks should convince the appellate court to set aside a district court ruling that his detention on secret evidence was unconstitutional and simply grant the Justice Department virtual unreviewable power to bring secret-evidence cases. Clearly, Justice thinks that in this courtroom it has perhaps the strongest chance in the nation of securing a new secret-evidence precedent.

At the same time, Mazen Al-Najjar's case plays into a little-noted Justice Department change in policy with sweeping implications for Palestinians and other stateless or unpopular migrants. In mid-November Ashcroft quietly issued a new regulation allowing indefinite detention of noncitizens under a final deportation order if they are deemed to be national security risks and if no country can be found to accept them. Call it Mazen's Law: Should the Eleventh Circuit hand the government its secret-evidence authority, under this new regulation Al-Najjar, a man never indicted or convicted of a crime, would once again be labeled a terrorist and face imprisonment without end.

During his first 1,307 days in prison, Al-Najjar came to believe, he said, that "the government's intention all along was to detain me, not deport me." His new arrest, and Justice's cynical use of discredited charges, suggests that he's right. This time Justice appears determined to keep him far away from the press and his Tampa supporters: Instead of a nearby immigration jail, he's been shipped to solitary confinement in Coleman federal penitentiary seventy-five miles away and may not make phone calls or receive visits from his family for thirty days. The latest–perhaps indefinite–imprisonment of Al-Najjar deeply calls into question the factual and moral basis for the Justice Department's ongoing dragnet.